CITATION: Grimstead v. Ontario College of Teachers, 2023 ONSC 1801

DIVISIONAL COURT FILE NO.: 398/22 (Toronto) DATE: 20230403

Corrected decision: The text of the original Reasons for Judgment was corrected on April 6, 2023. The description of the correction is appended.

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Trimble and O’Brien JJ.

BETWEEN:

jeremy peter grimstead

M. Olanyi Parsons, for the Applicant (Appellant)

Applicant (Appellant)

– and –

ontario college of Teachers

Jordan Stone, for the Respondent

Respondent

HEARD at Toronto: March 2, 2023

PUBLICATION BAN: Pursuant to subsections 32.1(3) and 32.1(4) of the Ontario College of Teachers Act, 1996, no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing, or the person who was allegedly sexually abused, or the subject of sexual misconduct, a prohibited act involving child pornography, or a prescribed sexual act. By order of the Honourable Justice N. Karam of the Superior Court of Justice, there is also a publication ban on any information that could identify a victim or a witness in a related criminal matter, pursuant to subsection 486.4 of the Criminal Code.

R. A. Lococo J.

REASONS FOR JUDGMENT

I. Introduction

[1] The appellant Jeremy Peter Grimstead appeals the decision of a panel of the Discipline Committee of the respondent Ontario College of Teachers (the “College”) dated May 13, 2022 (the “2022 panel decision”). In its decision, the panel dismissed the appellant’s application for reinstatement as a College member and directed the College Registrar to immediately revoke the appellant’s Certificate of Qualification and Registration (“Certificate”).

[2] The appellant sought reinstatement of his Certificate following amendments to the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12 (the “OCTA”), which came into effect on December 8, 2020 (the “effective date”). On the effective date, the appellant’s Certificate was automatically revoked because of a finding of professional misconduct against him in 2009 relating to sexual abuse of a student, which at the time resulted in a two-year suspension of his Certificate. He was also convicted of a criminal offence relating to the same conduct.

[3] While the amended legislation deemed his Certificate to be revoked because of this prior finding, it also permitted him to apply to the College for reinstatement (and to receive an interim Certificate while the reinstatement application was pending) since he had received a pardon of his criminal conviction before the effective date.

[4] Among other things, the appellant submits that the panel erred in giving retrospective effect to the legislative amendments by imposing a more severe penalty than the appellant received when he was found guilty of professional misconduct in 2009.

[5] As explained below, I would dismiss the appeal. The presumption against retrospectivity was rebutted by the express language or necessary implication of the legislative amendments.

II. Factual background

[6] The College granted the appellant an initial Certificate in 2003. In 2006, while employed as a high school teacher, the appellant was charged with sexual exploitation contrary to the Criminal Code, R.S.C. 1985, c. C-46. The complainant was a Grade 12 student, age 17. The appellant was 29 at the relevant time. In 2007, the appellant was also charged with breach of recognizance, the terms of which prohibited contact with the student.

[7] The criminal charges were resolved in 2008, when the appellant pleaded guilty to common assault and was convicted of that offence. According to the agreed facts before the sentencing judge, there was physical contact of a sexual nature between the appellant and the student. As recommended in a joint submission, the appellant received a suspended sentence and was placed on probation for 12 months.

[8] In a decision dated July 9, 2009, reported at 2009 ONOCT 22) (the “2009 panel decision”), a panel of the College’s Discipline Committee found the appellant guilty of professional misconduct, based on an uncontested finding of sexual abuse of a female student for conduct that included sexual touching of the student. The penalty imposed was a two-year suspension of the appellant’s Certificate and a reprimand. As well, the following terms, conditions and limitations were placed on the appellant’s Certificate, to be fulfilled prior to returning to employment as a teacher:

a. The appellant shall complete a course of instruction by a practitioner approved by the College Registrar with respect to maintaining appropriate boundaries in student-teacher relations and shall provide written evidence of the course’s successful completion.

b. The appellant shall provide the Registrar with a psychologist’s certificate that the psychologist examined the appellant within 60 days before the intended return to work and found that the appellant is able to return to full-time classroom duties without causing risk of harm or injury to students or the school community.

c. The appellant shall provide his employer with the 2009 panel decision and request that the employer conduct a performance appraisal each school year for two years. The appellant shall provide copies of the performance appraisal reports to the Registrar.

[9] Although not part of the conditions placed on the appellant’s Certificate, the 2009 panel decision also recommended that the appellant pursue ongoing counseling “to explore more fully the psychological dynamics which lead him to jeopardize his career.” The 2009 panel decision also stated that a psychiatrist and a psychologist who each examined the appellant recommended that he undergo therapy, “one specifically talking about mentoring upon a return to the classroom and the other talking about a course in boundary violations.”

[10] In January 2010, the appellant fulfilled the first condition placed on his Certificate by completing the required student-teacher boundaries course.

[11] On July 9, 2011, the College reinstated the appellant’s Certificate, subject to the terms and conditions in the 2009 panel decision.

[12] Even though his Certificate was reinstated, the appellant did not return to teaching, but instead pursued a career in biological sciences (later obtaining a Master of Science degree). He continued a romantic relationship with the former student, living common law with her until she ended the relationship in 2011.

[13] The appellant subsequently applied for a pardon of his criminal conviction. By letter dated January 21, 2019, the Parole Board of Canada notified the appellant that the pardon had been awarded.

III. OCTA amendments – deemed revocation and application for reinstatement

[14] On December 8, 2020, amendments to the OCTA came into effect (the “2020 OCTA amendments)”. As of the effective date, s. 30.3 of the OCTA automatically revoked the appellant’s Certificate. By letter dated December 16, 2020, the College notified the appellant that his Certificate was revoked as of the effective date.

[15] Section 30.3 provides as follows:

Retroactive revocation

30.3 A member’s certificate of qualification and registration is deemed to be revoked as of the day this section comes into force if, before that day, an order was made by the Discipline Committee under subsection 30(4) or (5) in which the member was found guilty of an act of professional misconduct consisting of or including sexual abuse of a student or a prohibited act involving child pornography and,

(a) the Discipline Committee did not order a revocation of the member’s certificate of qualification and registration; or

(b) the Discipline Committee ordered a revocation but the member’s certificate of qualification and registration was later reinstated under subsection 33(6) or 34(1).

[16] The term “sexual abuse” of a student is defined in s. 1(1)(b) as including “touching, of a sexual nature, of the student by the member”.

[17] In the 2009 panel decision, the Discipline Committee found the appellant guilty of professional misconduct consisting of sexual abuse of a student and did not order a revocation of the appellant’s Certificate. Therefore, s. 30.3 applied to deem his Certificate revoked on the effective date because of the panel’s finding in the 2009 panel decision.

[18] As explained below, even though the appellant’s Certificate was deemed revoked as of the effective date, the appellant was entitled to apply to the College for reinstatement, since he had previously received a pardon of his criminal conviction. He was also able to obtain an interim Certificate, to be effective pending a hearing and decision on the reinstatement application.

[19] As a general rule, a person whose Certificate has been revoked or suspended may apply for reinstatement of the Certificate under s. 33(1). However, subject to ss. 33(4.2) and (4.3) (referred to further below), a College member is prohibited from applying for reinstatement by s. 33(1.1) if the member’s Certificate was deemed revoked under s. 30.3 for committing an act of professional misconduct that involved sexual abuse of a student.

[20] Sections 33(1) and 33(1.1) state as follows:

Reinstatement and variation procedures

Reinstatement after disciplinary proceedings

33 (1) Subject to subsection (1.1), a person who has had a certificate revoked or suspended … may apply in writing to the Registrar to have a new certificate issued or the suspension removed.

No application for reinstatement

(1.1) Subject to subsections (4.2) and (4.3), subsection (1) does not apply to a person who has had a certificate … deemed revoked pursuant to section 30.3 for committing an act of professional misconduct that consisted of or included any of the following:

1. Sexual abuse of a student as described in clause (a) or (b) of the definition of “sexual abuse” in subsection 1 (1) ….

[21] Sections 33(4.2) and (4.3) provide an exception to the general rule that prohibits a reinstatement application from a person whose certificate is deemed revoked because of a previous finding of professional misconduct involving sexual abuse of a student. The exception applies if the person’s conduct led to a criminal conviction and a pardon was granted before the effective date. In these circumstances, the person is also able to obtain a new Certificate, to be effective pending a hearing and decision on the reinstatement application.

[22] Sections 33(4.2) and (4.3) provide as follows:

Reinstatement after conviction or pardon

(4.2) Despite anything in this section, if a person’s certificate of qualification and registration is revoked, suspended or made subject to terms, conditions or limitations in relation to a matter that led to a conviction under the Criminal Code (Canada) and the conviction is subsequently overturned on appeal, or the person has been granted a pardon under the Criminal Code (Canada), the person may make an application under subsection (1) or (2) at any time after the conviction was overturned or the pardon was granted.

Same

(4.3) With respect to a person referred to in subsection (4.2) whose certificate of qualification and registration was deemed revoked pursuant to section 30.3, if the conviction was overturned on appeal or the person was granted a pardon under the Criminal Code (Canada) before the day this section comes into force and the person makes an application under subsection (1) of this section within 60 days of the revocation under section 30.3 and provides proof that the conviction was overturned or the pardon was granted,

(a) the Registrar shall issue a certificate to the applicant immediately upon receiving the application and proof; and

(b) the member may hold the certificate until the Discipline Committee has made an order with respect to the application under subsection (6) of this section.

[23] Section 33(6) sets out the orders that the Discipline Committee may make after the reinstatement hearing. Section 33(6) provides as follows:

Order

(6) The Discipline Committee may, after a hearing, make an order doing one or more of the following:

1. Refusing the application.

2. Directing the Registrar to issue a certificate to the applicant.

3. Directing the Registrar to remove the suspension of the applicant’s certificate.

4. Directing the Registrar to impose specified terms, conditions and limitations on a certificate of the applicant.

5. Directing the Registrar to remove any term, condition or limitation on a certificate of the applicant.

6. Fixing a period during which the applicant may not apply under this section.

7. Directing the Registrar to continue or to revoke a certificate issued under clause (4.3)(a).

[24] Because the appellant was granted a pardon of his criminal conviction before the effective date, he was able to rely on the exception from the general rule that would have otherwise prohibited him from applying of reinstatement of his Certificate. In late December 2020 or early January 2021, the appellant provided the College Registrar with proof of that a pardon had been granted, as provided for in s. 33(4.3).

[25] In January 2021, the College issued an interim Certificate to the appellant pending a reinstatement hearing and advised the appellant that the College considered his reinstatement application to have been submitted. On July 22, 2021, the appellant provided his reinstatement application to the College.

IV. 2022 panel hearing and decision

[26] On September 30, 2021, the Registrar issued a Notice of Hearing of Reinstatement Application. The reinstatement hearing proceeded by video conference on February 25, 2022.

[27] At the reinstatement hearing, among other things, the appellant provided evidence of the steps he had taken toward rehabilitation, in cooperation with the College: see 2022 panel decision (reported at 2022 ONOCT 53), at paras. 17-18. He completed the boundaries course in 2010 to comply with the first condition on his Certificate imposed by the 2009 panel decision. In January 2022, he completed the College’s Sexual Abuse Prevention Program.[^1] He previously completed mandatory courses in workplace and sexual harassment through his work with the Ontario government. The appellant also provided a psychological assessment report dated October 2, 2020, relating to his fitness to return to teaching without causing risk of harm or injury to students or the school community (as contemplated by the second condition on his Certificate). As well, he provided the panel with names of psychotherapists and psychologists that he or his counsel contacted or (since November 2021) attempted to contact or intended to contact to seek ongoing counselling in accordance with the panel’s recommendations in the 2009 panel decision.

[28] The panel rendered its decision on May 13, 2022, dismissing the appellant’s application for reinstatement and directing the College Registrar to immediately revoke the appellant’s Certificate. The panel found that the appellant had not proven, on a balance of probabilities, that the reinstatement of his Certificate was in the public interest: 2022 panel decision, at paras. 30. In doing so, the panel referred to its duty under s. 16(1) of the OCTA to serve and protect the public interest: at para. 56.

[29] In its reasons for decision, among other things, the panel found that the nature of the appellant’s professional misconduct weighed heavily against his reinstatement, noting that sexual abuse of a student is among the most serious forms of misconduct a teacher can commit, as recognized in the 2020 OCTA amendments: 2022 panel decision, at paras. 31-35. The panel also found that the appellant had not produced sufficient evidence of his good character to demonstrate that public confidence would be preserved by his reinstatement: at paras. 36-42. In addition, the appellant’s efforts at rehabilitation (including his only recent attempts to obtain counseling) did not satisfy the panel that he had sought sufficient help to identify and address the issues that contributed to his misconduct: at paras. 44-49. As well, while the medical reports indicated that the appellant was at low risk of reoffending, the panel was not satisfied that the appellant had demonstrated that the risk to students had been displaced, given the appellant’s “lack of insight, accountability or efforts to understand and address his original conduct through counseling”: at para. 50-51. The panel also found that reinstatement of the appellant’s Certificate would negatively affect the public’s trust and confidence in the teach profession: at para. 52.

V. Jurisdiction and standard of review

[30] The appellant appeals from the 2022 panel decision. He seeks an order setting aside the decision and directing the College to reinstate his Certificate, or in the alternative, to remit the matter back to the College to be reheard by a different panel of the Discipline Committee.

[31] The Divisional Court has jurisdiction to hear an appeal from a decision of the College’s Discipline Committee: OCTA, s. 35(1). The appellate standards of review apply on the appeal, as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 35-36: see Canada (Minister of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.

[32] The standard of review is correctness for questions of law, including legal principles extricable from questions of mixed fact and law.

[33] The standard of review is palpable and overriding error for questions of fact and for other questions of mixed fact and law, including with respect to the application of correct legal principles to the evidence.

[34] A palpable and overriding error is “an obvious error that is sufficiently significant to vitiate the challenged finding”: Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at para. 39.

VI. Issues to be determined

[35] The appellant submits that the panel erred in giving retrospective effect to the 2020 OCTA amendments by imposing a more severe penalty than the appellant received when he was found guilty of professional conduct in 2009. He also argues that the panel erred in interpreting too broadly the panel’s duty to protect the public interest. In his submission, the panel’s objective being to punish the appellant for a prior event rather than to protect the public interest.

[36] The issues to be determined are as follows:

a. Do the 2020 OCTA amendments have retrospective effect?

b. Can the panel impose a more severe penalty than imposed in the 2009 panel decision?

c. Did the panel err in interpreting too broadly its duty to protect the public interest?

VII. Analysis

A. Do the 2020 OCTA amendments have retrospective effect?

[37] The appellant submits that the panel erred in giving retrospective effect to the 2020 OCTA amendments by imposing a more severe penalty than the appellant received when he was found guilty of professional conduct in 2009. The appellant relies on case law relating to the presumption against retrospectivity, a rule of statutory interpretation that the appellant says applies in this case.

[38] In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 43, the Supreme Court of Canada described the presumption against retrospectivity as follows:

The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction” …. The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act” …. [Citations omitted.]

[39] In Tran, at paras. 46-47, the Supreme Court considered its previous decision in Brosseau v. Alberta Securities Commission, 1989 121 (SCC), [1989] 1 S.C.R. 301, in which the court held that “the presumption [against retrospectivity] will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event.” In Tran, the court went to state that “[t]o interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.”

[40] At paras. 49-50, the Supreme Court in Tran further stated as follows:

49. The presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.

50. Ordinarily, express language or necessary implication … provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The "public protection" exception [in Brosseau] permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. [Citation omitted.]

[41] The appellant submits that in the 2020 panel decision, the panel erred in law by imposing a penalty that gave retrospective effect to the 2020 OCTA amendments. His argument may be summarized as follows:

a. The presumption against retrospectivity applies when interpreting the 2020 OCTA amendments.

b. The appellant has “acquired rights” (the term used in Tran, at para. 43) arising from the finding in the 2009 panel decision that a two-year suspension of his Certificate (with terms and conditions) was a suitable penalty for his previous professional misconduct.

c. Because of his criminal conviction and pardon prior to the effective date, the appellant had the right under ss. 33(4.2) and (4.3) to apply for reinstatement of his Certificate and receive a new Certificate. Since he served the suspension and satisfied the terms and conditions in the 2009 panel decision, the appellant had the reasonable expectation his Certificate would be reinstated.

d. It is clear from ss. 33(4.2) and (4.3) that the Legislature considered the issue of retrospectivity and determined that in circumstances in which the College has previously penalized a College member for sexual abuse of a student and the member received a criminal pardon, the legislation does not permit the retrospective imposition of a more severe penalty, which would be unfairly prejudicial to the member.

e. The “public protection” exception in Brosseau does not apply to preclude the application of the presumption against retrospectivity when interpreting the 2020 OCTA amendments, since the panel’s objective was to punish the appellant for a prior event rather than to protect the public interest.

[42] I disagree with the appellant’s analysis.

[43] While there is a presumption against the retrospective or retroactive[^2] application of legislative provisions, the presumption is rebutted if the Legislature indicates by express language or necessary implication that the legislation is to have retrospective effect. Where the Legislature clearly provides that a law is to apply retrospectively, the presumption no longer operates and the legislation must be given retrospective effect: Tran, at paras. 43, 49-50. In those circumstances, the Legislature must be taken as having considered the issue of unfairness and determined that the benefits to public protection outweigh any unfairness to persons who are adversely affected. As well, under the “public protection” exception in Brosseau (as indicated above), legislation may have retrospective effect even in the absence of express language or necessary implication “if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event:” Tran, at paras. 47, 50.

[44] Section 30.3 provides clear and explicit direction that the Legislature intended that the provision apply retrospectively to revoke the Certificate of an affected member. Section 30.3 states that a member’s Certificate is “deemed revoked” on the day the legislation comes into force if they were previously found guilty of professional misconduct involving sexual abuse of a student and the member’s Certificate was not revoked or was revoked and reinstated. The use of the word “deemed” is a clear indication of the intended retrospective effect of the provision. Further evidence of that intent (while not in itself determinative) is provided by the marginal note/heading for the provision, titled “Retroactive revocation”.

[45] Sections 33(4.2) and (4.3) did not create an acquired right or entitlement to reinstatement for the appellant. As of the effective date, the appellant’s Certificate was deemed revoked. By reason of a narrow exception in s. 33(4.2) to the general rule against reinstatement for persons whose Certificates had been deemed revoked for prior sexual abuse of a student, the appellant was permitted to apply for reinstatement and to obtain a new temporary Certificate under s. 33(4.3). By the clear language of s. 33(4.3), the Certificate granted under that provision was an interim Certificate that the appellant was only entitled to hold pending the outcome of the reinstatement hearing. The interim nature of the Certificate is further evidenced by s. 33(6)7, which states that following a reinstatement hearing, the Discipline Committee may make an order “[d]irecting the Registrar to continue or to revoke a certificate issued under clause (4.3)(a)”. The fact that an order is required to “continue” a certificate granted under s. 33(4.3) demonstrates that it is temporary in nature and not a permanent right or entitlement.

[46] As well, there is nothing in s. 33(6) or elsewhere in in the 2020 OCTA amendments to indicate that the appellant was entitled to any particular outcome of his reinstatement application. The onus remained on the appellant to satisfy the panel that his Certificate should be reinstated.

[47] In these circumstances, I am not satisfied that the appellant had any “acquired rights” that were violated by the panel’s refusal to reinstate the appellant’s Certificate. By their clear language, the 2020 OCTA amendments applied retrospectively, with the result that the appellant did not have acquired rights arising from the 2009 panel decision.

[48] As indicated above, the appellant also argues that the “public protection” exception in Brosseau does not apply to preclude the application of the presumption against retrospectivity when interpreting the 2020 OCTA amendments, since the panel’s objective was to punish the appellant for a prior event rather than to protect the public interest. The panel’s reliance on its duty to serve and protect the public interest under s. 16(1) of the OCTA is referred to further below, but the application of the public protection exception in Brosseau may be addressed with dispatch.

[49] I have already concluded that the presumption against retrospectivity was rebutted in this case by the express language or necessary implication of the legislation. In these circumstances, there is no need to consider whether the presumption against retrospectivity is displaced by the public protection exception in Brosseau. The application of the public protection exception would be a live issue only if the presumption against retrospectivity applied and had not been rebutted.

[50] In their submissions, the College also raised the question of whether the appellant should be permitted to raise the issue of retrospectivity on appeal, given that the issue was not raised before the panel: see Kaiman v Graham, 2009 ONCA 77, 245 O.A.C. 130, at para 18. Given the conclusions with respect to retrospectivity reached in these Reasons for Judgment, it is unnecessary to address that issue.

B. Can the panel impose a more severe penalty than the penalty imposed in the 2009 panel decision?

[51] In support of his position that the panel erred in imposing a more severe penalty than that imposed in the 2009 panel decision, the appellant also relied on previous Divisional Court decisions in Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.) and College of Physicians and Surgeons of Ontario v. Kunynetz, 2019 ONSC 4300 (Div. Ct.).

[52] In Kalin, the applicant teacher sought judicial review of a 2003 decision of the College’s Discipline Committee, finding the teacher guilty of professional misconduct and revoking his certificate of registration for conduct that occurred in 1991. The regulation under which the applicant teacher was charged and found guilty came into force in 1997. The court on judicial review, after reviewing case law relating to the presumption against retrospectivity (at paras. 78- 82), held as follows (at para. 83):

Prosecuting Mr. Kalin under a 1997 definition of misconduct for acts that are alleged to have occurred in 1991 offends the rule against retrospectivity…. The conduct must be judged in light of what was prohibited conduct at the time. Further, if it is to be punished, the punishment cannot be more severe than the potential punishment to which the perpetrator was liable at the time of the misconduct.

[53] In Kunynetz, the respondent college’s Discipline Committee found that the appellant physician committed acts of professional misconduct that included conduct that occurred in 2008 and revoked the physician’s certificate of registration. On appeal, the court stated (in obiter dicta[^3]) that the respondent college’s Discipline Committee erred in giving retrospective effect to 2017 amendments to the College’s governing legislation that added certain acts of professional conduct to the list of acts that would result in the mandatory revocation: Kunynetz, paras. 138-146.

[54] Kalin and Kunynetz are distinguishable from the matter currently under appeal. In Kalin, the legislation that authorized the regulation under which the applicant was charged with professional misconduct did not indicate by express language or necessary implication that the regulation was to have retrospective effect: Kalin, at paras. 71, 77. Similarly, in Kunynetz, the legislation in question did not indicate by express language or necessary implication that the legislation was to have retrospective effect. Accordingly, the presumption against retrospectivity applied in both cases and was not rebutted, unlike the case currently under review.

[55] The cases that the appellant relies on are therefore of no assistance in establishing that the panel erred by imposing a more severe penalty than the penalty imposed in the 2009 panel decision.

C. Did the panel err in interpreting too broadly its duty to protect the public interest?

[56] Every member of the Discipline Committee is required, in carrying out their duties, to serve and protect the public interest: see OCTA, s. 16(1)(a). In the 2020 panel decision, the panel found that the appellant had not proven, on a balance of probabilities, that the reinstatement of his Certificate was in the public interest and referred to its duty under s. 16(1) to serve and protect the public interest: 2020 panel decision, at paras. 30, 56.

[57] The appellant submits that the panel erred in interpreting too broadly the panel’s duty to protect the public interest. The appellant says that the panel’s objective was to punish the appellant for a prior event rather than to protect the public interest.

[58] The appellant makes that argument as part of its submissions relating to the public protection exception in Brosseau to the presumption against retrospectivity. The appellant submits that by interpreting the panel’s duty to protect the public interest as including the objective of punishing him for a prior event, the College seeks to undermine the purpose and intent of the presumption against retrospectivity. As explained above, the public protection exception in Brosseau has no application in this case.

[59] In support of his position that the panel interpreted its duty to protect the public interest too broadly, the appellant also relies on other case law to support his submission that professional discipline legislation should be narrowly interpreted in favour of the professional being disciplined, given the serious consequences to an individual’s livelihood that follows from being subject to the regulatory scheme: for example, see Association of Professional Engineers of Ontario v. Leung, 2018 ONSC 4527 (Div. Ct.), at para. 50. That case law must be considered in the context of decisions in this and other courts that indicate that a professional regulator’s legislation should be interpreted broadly and purposively to ensure that public protection is achieved: College of Nurses of Ontario v. Dumchin, 2016 ONSC 626, 130 O.R. (3d) 602 (Div. Ct.), at para 33, Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682, at para. 16, leave to appeal ref’d, [2018] S.C.C.A. No. 457; Sazant v. College of Physicians and Surgeons, 2012 ONCA 727, 113 O.R. (3d) 420, at para. 101, leave to appeal ref’d [2012] S.C.C.A. No. 549; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 28.

[60] The substance of the appellant’s submissions relating to the panel’s duty to protect the public interest is that the panel erred in applying the legal duty set out in s. 16(1)(a) of the OCTA to the evidence in this case. The application of correct legal principles to the evidence is a question of mixed fact and law. The standard of review is palpable and overriding error, absent an error with respect to an extricable legal principle. I see no error in principle relating to panel’s interpretation of s. 16(1)(1) and no palpable and overriding error relating to the application of that provision to the evidence.

VIII. Disposition

[61] Accordingly, I would dismiss the appeal and order the appellant to pay costs to the College in the agreed amount of $12,500 all inclusive.

___________________________ Lococo J.

I agree

___________________________ Trimble J.

I agree

___________________________ O’Brien J.

Date of Release: April 3, 2023

CORRECTION DESCRIPTION

The text of the original judgment was corrected on April 6, 2023.The only change from the original judgment was to add the word “no” to the opening words of the last sentence of paragraph 60, so that the sentence now begins: “I see no error in principle …”

CITATION: Grimstead v. Ontario College of Teachers, 2023 ONSC 1801

DIVISIONAL COURT FILE NO.: 398/22 (Toronto) DATE: 20230403

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Lococo, Trimble and O’Brien JJ.

BETWEEN:

jeremy peter grimstead

Applicant (Appellant)

– and –

ontario college of Teachers

Respondent

REASONS FOR JUDGMENT

R.A. Lococo J.

Date of Release: April 3, 2023

[^1]: As part of the 2020 OCTA amendments, the College is required to have a sexual abuse prevention program: OCTA, s. 47.2(1).

[^2]: In the College’s submissions, counsel made a distinction between legislation that is retroactive (changes the past legal effect of past events or circumstances) or retrospective (changes for the future the legal effect of past events or circumstances): see Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358, at para. 39. The College’s position is that the 2020 OCTA amendments were retroactive rather than retrospective. Since the legal analysis in either case is essentially the same, these Reasons for Judgment generally refer to the retrospective (rather than retroactive) effect of legislation.

[^3]: The Divisional Court quashed the finding that the physician had engaged in the alleged act that would have given rise to mandatory revocation of his certificate of registration: Kunynetz, at para. 160. Therefore, it was not necessary for the court to determine whether the amendments to the college’s governing statute relating to mandatory revocation had retrospective effect.